The Hamdan decision

My colleague Peter Levine on the Hamdan decision:

I can imagine, first, that Hamdan will become a watershed case, standing for the principle that the executive is a dangerous branch, especially when the country appears to be threatened. The executive has guns, jails, and interrogation rooms; it has the capacity (unlike Congress) to make secret decisions. It is prone to overreach and violate individual liberties. Hamdan could represent the idea that the president must obey laws, including such international treaties as the Geneva Convention. George W. Bush could become an illustration of a dangerous president who was brought under control by the court.

If public opinion crystallized around that view, then Congress would not pass legislation to preserve the tribunals. Many Members would share Rep. Adam Schiff's view that the Hamdan decision should not only close Guantanamo, but also end warrantless wiretapping. (As Jack Balkin notes, the administration's use of wiretaps without court orders had the same justification as Guantanamo: the use-of-force resoluton). It is even conceivable that prominent people would start clamoring for prosecutions of men like Donald Rumsfeld for violating Article 3 of the Geneva Convention in contravention of US law.

I can also imagine, however, that Hamdan will be wrapped together with the New York Times' leaks of banking surveillance and the Democrats' criticisms of the Pentagon. People will believe that various "elites" are putting the country at risk by following foreign opinion and hamstringing the president. Under those circumstances, Congress will feel safe in reinstating the Guantanamo tribunals by statute. The status quo will resume and the Hamdan decision will become a footnote. It will be cited when people want presidents to consult with Congress, but the executive will feel confident in refusing to do so. (For this scenario, see my colleague Mark Graber on Balkinization.)